LibertyWorks Inc v The Commonwealth

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HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

LIBERTYWORKS INC  PLAINTIFF

AND

COMMONWEALTH OF AUSTRALIA  DEFENDANT

LibertyWorks Inc v Commonwealth of Australia

[2021] HCA 18

Date of Hearing: 2 March 2021
Date of Judgment: 16 June 2021

S10/2020

ORDER

The questions of law stated in the Amended Special Case filed on 1 March 2021 be answered as follows:

1.Is the Foreign Influence Transparency Scheme Act 2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication?

Answer:No.

2. In light of the answer to question 1, what relief, if any, should issue?

Answer:None.

3. Who should pay the costs of and incidental to this special case?

Answer:The plaintiff should pay the defendant's costs. 

Representation

P J Dunning QC with R Scheelings for the plaintiff (instructed by Speed and Stracey Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth, with B K Lim and S Zeleznikow for the defendant (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with S Robertson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Constitutional law (Cth) – Implied freedom of communication about governmental or political matters ("implied freedom") – Where Foreign Influence Transparency Scheme Act 2018 (Cth) ("Act") included registration requirement for persons undertaking communications activity on behalf of foreign principal for purpose of political or governmental influence – Where foreign principal defined to include foreign political organisation – Where plaintiff undertook registrable activities on behalf of foreign political organisation in holding annual Conservative Political Action Conference events which constituted communications activity – Whether Act to extent it imposes registration obligations with respect to communications activity undertaken on behalf of foreign principal effectively burdens implied freedom ­– Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance.

Words and phrases – "adequate in its balance", "burden", "communications activity", "compelling justification", "disclosure", "foreign influence", "foreign interference", "foreign political organisation", "foreign principal", "legitimate purpose", "narrowly tailored", "necessary", "political or governmental influence", "prior restraint", "register", "registration", "scheme information", "structured proportionality", "suitable", "transparency", "undisclosed influence".

Foreign Influence Transparency Scheme Act 2018 (Cth), ss 11, 12, 13, 16, 18, 21, 38, 42, 43, 45, 46, 52, 53.
Foreign Influence Transparency Scheme (Disclosure in Communications Activity) Rules 2018 (Cth).
Foreign Influence Transparency Scheme Rules 2018 (Cth), s 6.

  1. KIEFEL CJ, KEANE AND GLEESON JJ.   The plaintiff, LibertyWorks Inc, was incorporated in 2015 under the Associations Incorporation Act 1981 (Qld). It presently has 1,290 members in Australia. It is described in the Amended Special Case as "a private think-tank with an aim to move public policy in the direction of increased individual rights and freedoms, including the promotion of freedom of speech and…

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Details
Case
[2021] HCA 18
Decision Date

CaseChat Overview and Summary

LibertyWorks Inc (the plaintiff) brought proceedings against the Commonwealth of Australia (the defendant) in the High Court of Australia concerning the validity of certain provisions of the *Foreign Influence Transparency Scheme Act 2018* (Cth) (the Act). The plaintiff contended that the Act, by imposing registration obligations on individuals undertaking communications activity on behalf of a foreign principal for the purpose of political or governmental influence, impermissibly burdened the implied freedom of political communication protected by the Australian Constitution. The parties agreed that the plaintiff had undertaken such registrable activities on behalf of a foreign political organisation by holding annual Conservative Political Action Conference events.

The central legal issue before the High Court was whether the Act, to the extent it imposes registration obligations on communications activity undertaken on behalf of a foreign principal, effectively burdens the implied freedom of political communication. This required the Court to consider whether such provisions were for a legitimate purpose and, if so, whether they were suitable, necessary, and adequate in their balance, applying the structured proportionality test. The Court was also asked to determine the consequential relief and costs.

The High Court, by majority, concluded that the Act did not infringe the implied freedom of political communication. The Court reasoned that the Act served a legitimate purpose of promoting transparency regarding foreign influence in Australia's political and governmental processes, a matter of significant national security concern, particularly in light of global trends of foreign interference. The Court found that the registration obligations were a suitable and necessary means to achieve this purpose and were adequate in their balance, not imposing an undue burden on political communication.

Consequently, the High Court answered the questions of law stated in the Amended Special Case. The Court held that the *Foreign Influence Transparency Scheme Act 2018* (Cth) is not invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication. No relief was ordered, and the plaintiff was ordered to pay the defendant's costs.

Orders

Orders of the court

The questions of law stated in the Amended Special Case filed on 1 March 2021 be answered as follows:

1. Is the Foreign Influence Transparency Scheme Act 2018 (Cth) invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the implied freedom of political communication?

Answer: No.

2. In light of the answer to question 1, what relief, if any, should issue?

Answer: None.

3. Who should pay the costs of and incidental to this special case?

Answer: The plaintiff should pay the defendant's costs.

Background

Background to the litigation

The plaintiff claims that the provisions of the FITS Act respecting communications activity by a person who acts on behalf of a foreign principal burden the freedom of political communication which is implied by the Constitution, cannot be justified and are therefore invalid.Foreign influence – agreed facts It is agreed between the parties to this Amended Special Case that in recent years there has been a global trend of attempts at the foreign influence of democratic processes. Official reports[1] have concluded that a foreign country sought to undermine the Brexit referendum in the United Kingdom, the 2016 Presidential election in the United States and the 2017 French Presidential election. Foreign actors in many countries have also sought to exert covert influence through the use of both traditional and social media, including by spreading disinformation and propaganda. Two social media platforms have taken action against cyber troops engaged in foreign influence operations in at least seven countries[2]. [1]Mueller, Report on the Investigation into Russian Interference in the 2016 Presidential Election (2019), vol 1 at 1-5, 14-15; United Kingdom, House of Commons, Digital, Culture, Media and Sport Committee, Disinformation and 'Fake News': Final Report (2019) at 68-71, 72; United Kingdom, Intelligence and Security Committee of Parliament, Russia (2020) at 5, 9. [2]Bradshaw and Howard, The Global Disinformation Order: 2019 Global Inventory of Organised Social Media Manipulation (2019) at 2. At the time that the FITS Act was enacted the Australian Security Intelligence Organisation ("ASIO") had warned that espionage and foreign interference activity against Australia's interests was "occurring at an unprecedented scale"[3]. Australia was experiencing undisclosed foreign influence both in respect of government and political systems and processes and more broadly in the Australian community. ASIO identified foreign powers clandestinely seeking to shape the opinions of members of the Australian public, media organisations and government officials to advance their own countries' political objectives, including through the recruitment and co‑opting of influential and powerful Australian voices to lobby decision‑makers. It identified ethnic and religious communities in Australia as the subjects of covert influence operations designed to diminish their criticism of foreign governments[4].[3]Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Foreign Influence Transparency Scheme Bill 2017 (2018) at 2. [4]Australian Security Intelligence Organisation, ASIO Annual Report 2017-18 (2018) at 3, 25; Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Foreign Influence Transparency Scheme Bill 2017 (2018) at 2-5. The parties agree that there is a distinction to be drawn between foreign interference and foreign influence. The parties agree that foreign influence may be taken to refer to activities undertaken on behalf of a foreign principal that influence government and political systems and processes. Foreign influence will amount to foreign interference if it is undertaken using covert, deceptive, corrupting or threatening means to damage or destabilise the government or political processes of a country[5].[5]Australian Security Intelligence Organisation, ASIO Annual Report 2017-18 (2018) at 25; Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Foreign Influence Transparency Scheme Bill 2017 (2018) at 6-7, 9-11, 17, 166-167; Australian Security Intelligence Organisation, Director-General's Annual Threat Assessment (2020) at 9.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, KEANE AND GLEESON JJ GAGELER J
The current division of opinion in this Court may, in my view, justify a reconsideration, with leave if necessary, of the existence of the implied freedom. Nonetheless, as already mentioned, neither party challenged the existence of the implied freedom in this special case. For the disposition of this proceeding, it is therefore not appropriate to deny its application here. It should, if required, be a matter for full argument to be considered on another occasion. Conclusion I agree with the answers to the stated questions proposed by Kiefel CJ, Keane and Gleeson JJ.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE AND GLEESON JJ, GAGELER J

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